State v. Hackett

122 So. 3d 1164, 2013 La.App. 4 Cir. 0178, 2013 WL 4474090, 2013 La. App. LEXIS 1696
CourtLouisiana Court of Appeal
DecidedAugust 21, 2013
DocketNo. 2013-KA-0178
StatusPublished
Cited by19 cases

This text of 122 So. 3d 1164 (State v. Hackett) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Hackett, 122 So. 3d 1164, 2013 La.App. 4 Cir. 0178, 2013 WL 4474090, 2013 La. App. LEXIS 1696 (La. Ct. App. 2013).

Opinion

MAX N. TOBIAS, JR., Judge.

LThe defendant, Torrey Hackett (“Hackett”), was charged by bill of information with distribution of cocaine, a violation of La. R.S. 40:967. On 10 May 2006, his counsel filed a motion to suppress evidence and a motion for a preliminary examination, which were both heard on 25 May 2007. The trial court denied the motion to suppress and found probable cause. At the commencement of trial on 16 June 2008, Hackett waived his right to a trial by jury, electing a judge trial. He was found guilty as charged. A multiple bill of information was filed. A motion to quash the multiple bill was filed on 9 December 2009. Also, a motion for a new trial and a motion for post-verdict judgment of acquittal were filed and both denied by the trial court. On 30 July 2010, Hackett was sentenced to serve twenty years at hard labor with credit for time served. Under La. R.S. 15:529.1 (the Habitual Offender Law), based on prior convictions for possession of heroin and possession of marijuana (second offense), Hackett was found guilty of being a triple offender, citing his pleas of guilty in case number 392-870 and 430-834. Written requests for a Dorthey hearing and a presentence investigation were denied. The trial court then vacated Hackett’s prior sentence and resentenced him as a triple offender to twenty years at hard labor with credit for time served.

| gHackett appealed, alleging (1) insufficient evidence existed to support his con-vietion as a triple offender, and (2) that his twenty-year sentence as a triple offender violated the U.S. Constitution Eighth Amendment’s proscription of cruel and unusual punishment. We affirmed his conviction, but vacated his sentence, finding that his sentencing immediately following the denial of his motion for new trial, without an express waiver of delays, violated La.C.Cr.P. art. 873; we remanded for resentencing. State v. Hackett, 10-1626, unpub. (La.App. 4 Cir. 8/24/11), 68 So.3d 1238 (table).

On 27 September 2012, Hackett appeared before the trial court with counsel for resentencing. A motion for new trial was denied. The trial court also denied Hackett’s pro se motion to amend or modify the sentence. The trial court explained that it could not consider a sentence below the statutory minimum. Defense counsel waived all sentencing delays, and the trial court once again sentenced Hackett to serve twenty years in the Department of Corrections with credit for time served. (The sentence is the mandatory minimum sentence under La. R.S. 15:529.1.1) Hack-ett objected to the sentence and orally moved for an appeal. This appeal followed.

I.

The facts of this case are derived from this court’s prior opinion:

On May 10, 2006, at approximately 2:20 p.m., Sergeant Frank Young, Detective Jeff Sislo, Officer Robert Hurst and Officer Francis Jarod of the New Orleans Police Department Major Case Narcotics Unit were investigating drug trafficking in the Pigeon Town area of the city of New Orleans. While Sgt. Young drove an unmarked police unit, Det. Sislo acted [1168]*1168as a spotter and monitored any wired conversations between Sgt. Young and potential suspects.
13As Sgt. Young drove towards the Mississippi River on Leonidas Street, he was flagged down by Larry Mason at the corner of Leonidas and Hickory Streets. Sgt. Young pulled his vehicle onto the side of the street. Mr. Mason asked Sgt. Young if he was the police; Young answered that he was not. Sgt. Young asked Mr. Mason if he had any crack cocaine. Mr. Mason responded that he could get some crack and told Sgt. Young to wait. Mr. Mason walked across Hickory Street, where he met with Defendant Hackett and engaged in a conversation. Mr. Mason returned to Sgt. Young’s vehicle and informed Sgt. Young that he could only get $20.00 pieces of crack cocaine. Sgt. Young responded that he would purchase the crack. Mr. Mason walked back to Defendant Hackett. Defendant Hack-ett removed something from his right front pants pocket and gave it to Mr. Mason. Mr. Mason walked back to Sgt. Young’s vehicle and gave Sgt. Young three pieces of crack cocaine; Sgt. Young gave Mr. Mason a marked twenty-dollar bill in exchange for the cocaine.
As Sgt. Young drove away, he observed Mr. Mason and Defendant Hackett enter the Hickory Food Store. Sgt. Young signaled to Det. Sislo and the other officers that the drug transaction had been completed. Sgt. Young gave a description of Mr. Mason and Defendant Hackett and told the back-up team of police officers that they went into the Hickory Food Store. Officers Hurst and Jar-od entered the store and arrested Mr. Mason and Defendant Hackett. During a search incident to the arrests, the officers found a ten-dollar bill in the possession of each man. Det. Sis-lo entered the store, and, after a conversation with the store clerk, requested that the clerk produce all of the twenty-dollar bills that were in the cash register. Det. Sislo examined the bills and found the marked bill that Sgt. Young had given to Mr. Mason in exchange for the crack cocaine.
Mr. Mason testified that Defendant Hackett was not involved in the drug transaction, but was a victim of circumstance. Mr. Mason stated that he was not flagging Sgt. Young down, but was waving to a friend, who was at the corner of Leonidas and Green Streets. Mr. Mason also denied entering the Hickory Food Store; he claimed that he got the crack cocaine from Greg Brant, who is now deceased. Mr. Mason testified that Mr. Brant was the person who exchanged the twenty-dollar bill for two ten-dollar bills. He opined that because the police saw 14him and Defendant Hack-ett talking, they assumed that the defendant was involved in the drug transaction.
Ahmed Almaklani, manager of the Hickory Food Store, testified that Defendant Hackett was in the back of the store waiting for the lunch that he ordered and was never at the cash register. Mr. Almaklani denied exchanging the twenty-dollar bill for two ten-dollar bills. He stated that Det. Sislo looked through six twenty-dollar bills before finding the marked bill. Det. Sislo confiscated the marked bill and gave Mr. Almaklani an unmarked bill.

Hackett, 10-1626, pp. 3-5.

II.

In his assignments of error, Hackett asserts that the trial court erred in finding [1169]*1169him to be a triple offender because the state’s evidence is insufficient and the proceeding denied him due process of law; further, he asserts that sentencing him to twenty years at hard labor under the circumstances of this offense and for this offender violates the Eighth Amendment prohibition against cruel and unusual punishment or the Louisiana Constitution’s prohibition against excessive punishment. We discuss these assignments of error together.

Hackett first argues that he was never adjudicated a third felony offender because this court, in State v. Hackett, 10-1626, unpub. (La.App. 4 Cir. 8/24/11), vacated the trial court’s 10 July 2010 multiple offender adjudication and sentence and pretermitted the assignment as to the sufficiency of the multiple bill. However, his claim is incorrect. Only Hackett’s sentence was vacated by this court; the adjudication remained. Therefore, his argument lacks merit.

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Cite This Page — Counsel Stack

Bluebook (online)
122 So. 3d 1164, 2013 La.App. 4 Cir. 0178, 2013 WL 4474090, 2013 La. App. LEXIS 1696, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hackett-lactapp-2013.